United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 619_93_1705

Appeal No. EAT/619/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 May 1995

Before

THE HONOURABLE MR JUSTICE MORISON

(IN CHAMBERS)

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MRS H GRIFFIN           APPELLANT

(1) MR C SIMPSON

(2) DEPARTMENT OF EMPLOYMENT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR P MEAD

(Of Counsel)

Messrs Patterson & Brewer

11 Broad Quay

The Centre

Bristol

BR1 4OH

For the Respondents MR I McCABE

(Of Counsel)

Treasury Solicitor

Queen Anne's Chambers

28 The Broadway

London

SW1H 9NS


 


MR JUSTICE MORISON: This matter comes before me for directions. The background facts are complicated. As the matter will come before the E.A.T. in due course, it seemed to me that it would be helpful if I summarised what has happened in this case. Assuming the parties do not dispute the way I now recite the facts, I will suggest that for future assistance this short summary is kept on the file and available for others hereafter to make such use of, as they see fit.

Until she left her employment on 30 March 1994, in circumstances which she says gives rise to a claim for constructive dismissal under the 1978 Act, and to complaints under the Race Relations Act 1976, Mrs Griffin, an Asian, was employed by the Department of Employment. Her employment started at the end of 1973. She was appointed an Executive Officer in February 1982 and by 1991 was working in the Department's Benefit Office at Cheltenham. In September of that year, her immediate superior was due to take annual leave. Mrs Griffin had expected to cover for her during that time, but instead, two other persons were asked to undertake that task, one covering for one week and the other for the second week of absence. Mrs Griffin took exception to the way in which she was dealt with and complained to her Senior Manager, Mr Simpson, about it.

Her grievance was not resolved. On 26 November 1991 she presented a complaint to an Industrial Tribunal alleging unlawful discrimination contrary to Section 1 of the 1976 Act. Subsequently she requested the Industrial Tribunal to allow her to add claims in respect of events which had occurred both before and after she had presented her complaint. In relation to the later matter, she alleged that the Department were guilty of victimisation, contrary to Section 4 of the 1976 Act. Her complaint was listed for hearing and came before the Industrial Tribunal held at Bristol on 7 May 1992. On that occasion the Department introduced a substantial volume of papers. During the morning of that day, the Industrial Tribunal read the file and Mrs Griffin also had an opportunity to do so. It became clear that there was not sufficient time for the hearing to be completed and accordingly the Industrial Tribunal took the opportunity of making directions; giving leave to amend the complaint and ordering further and better particulars of it, also making orders for mutual discovery.

The matter came on for hearing, and lasted for six days, over the period from 14 December 1992 to 27 January 1993. The unanimous decision of the Industrial Tribunal, which was entered in the Register on 5 February 1993, was that the complaints of unlawful discriminatory treatment and victimisation, should be dismissed. In relation to victimisation, the relevant officer of whose treatment Mrs Griffin complained, said he was unaware of the complaint which was then pending before the Industrial Tribunal. On 18 February 1993, Mrs Griffin asked the Industrial Tribunal for a review of their decision. On 25 March 1993 the E.A.T. received from her a Notice of Appeal, alleging that the Industrial Tribunal had not appeared to apply the criteria specified in The Act. Between that date and 5 August 1993, there was sporadic correspondence between the E.A.T. Office and Mrs Griffin about her Notice of Appeal and whether it disclosed any arguable point of law.

The upshot was that, on 5 August the E.A.T. informed Mrs Griffin that a Preliminary Hearing of her appeal had been ordered. Mrs Griffin's application for a review came before the Industrial Tribunal on 27 August 1993 and by a written decision entered in the Register on 1 September 1993 the Industrial Tribunal ordered a review, limited to Mrs Griffin's complaint of victimisation against the Department. In other words, there was to be no review of the dismissal of her complaint of discrimination contrary to Section 1 of the 1976 Act, nor of her complaint against Mr Simpson.

The grounds upon which the decision was based, related to the possibility that there was new evidence to show that the relevant officer did know of her pending application to the Industrial Tribunal. On 16 September, Mrs Griffin wrote to the E.A.T. complaining of the Industrial Tribunal's decision not to allow a review of the whole decision, but no Notice of Appeal was received. The matter came before the Industrial Tribunal on 12 October 1993, at which evidence was given by the relevant officer, who had put to him the new material, which included evidence said to show that Mrs Griffin's performance in her job was better than she was being given credit for by her superiors, when assessing her case for promotion. On 19 October 1993 the written decision of the Industrial Tribunal confirming their original decision was entered in the Register. Mrs Griffin complained about this decision and wrote to the E.A.T. about it. Despite being told that a new Notice of Appeal was required, one was not submitted. After some correspondence on 13 January 1994, the E.A.T. wrote to her saying that her appeal would be listed for hearing as soon as possible. She was entitled to infer, I think, that that meant that all her various appeals would be considered at the Preliminary Hearing, regardless of the existence or otherwise of a formal Notice of Appeal.

The matter came before the E.A.T. on 9 March 1994, for consideration as to whether she had shown any arguable point of law in relation to any of her complaints about the Industrial Tribunal decisions. After consideration of the matter, the E.A.T. held that apart from one issue, none of the matters raised were arguable points of law and should be dismissed. The one point upon which the E.A.T. thought there was an arguable point related to the review. Mrs Griffin complained that she was not permitted by the Industrial Tribunal to give evidence herself and she says that that was unfair and wrong. The precise wording of the Employment Appeal Tribunal's order was perhaps not very clear:

"... limited to the issue as to whether or not the Appellant was allowed to give evidence in relation to the re-examination of Mr S Latus"

The Notes of Evidence limited to that given by Mr Latus at the review, were asked for. When the E.A.T. spoke of "the re-examination of" they must have meant "the further evidence of". The Notes of Evidence show that Mr Latus was not re-examined.

Having been informed of the result of the hearing, The Treasury Solicitor, on the Department's behalf, entered into correspondence with the E.A.T. correctly observing that the E.A.T. had effectively disposed of the only matters covered by the Notice of Appeal, and asking whether there was any Notice of Appeal extant, in relation to the order made by the E.A.T. on 9 March 1994. It would appear that on 30 March 1994, Mrs Griffin left her employment with the Department; on 29 June 1994 presented her complaint to an Industrial Tribunal, alleging unfair constructive dismissal and race discrimination. It would appear that Mrs Griffin has raised in her fresh IT1, matters which have already been adjudicated upon by the Industrial Tribunal in 1993. Questions may arise as to whether, in relation to them, there is issue estoppel or an argument for saying res judicata. By a written decision of an Industrial Tribunal which was sent to the parties on 14 December 1994, the Chairman has stayed both proceedings until after the E.A.T. has finally disposed of the appeal in relation to her other complaints. It became apparent that the only sensible course was to list this matter for a directions hearing, hence the application before me this morning. The parties very sensibly, in the light of what I have referred to, have agreed a consent order and I accordingly make the order in the terms requested, namely:

1. ) There be leave to the Appellant to amend her Notice of Appeal in the form initialled by me.
2. ) There be leave to the Respondent to enter an amended Notice of Answer within twenty-one days.
3. ) That there be no order for costs on this application.